When does an reasonable expectation of privacy become unreasonable?

September 19, 2010 by
Filed under: Uncategorized 

One of the more interesting questions about the future of privacy revolves, I think, around changing cultural perceptions of the private. By this I mean that what we see as private today, we might not consider as private tomorrow. Examples are readily available: not too long ago, a diagnosis of cancer was something to be kept secret, not shared with neighbors, friends, and sometimes even family. It was private. Today, that is the case to far lesser extent.

The issue of perceptions is an important one, not least because the law (in the US) sometimes rests on what the reasonable person’s expectations of privacy are. In a recent court case in the United States, the judges ruled that the reasonable person does not expect the authorities to know exactly where he has driven over the period of a month. As a result, they deemed as inadmissible evidence gleaned from a GPS device attached to a suspect’s car without a warrant.

This, of course, raises the question as to what cultural or social conditions might precipitate a change in this expectation. If Facebook Places wins over the hearts of all Facebook users, and we become used to logging our location ourselves throughout the day, would this constitute a lessening of the expectation to locational privacy? Would this make the use of GPS devices by the police without a warrant less unexpected by the reasonable person?

The flip side of this is that the private sector carries out completely legal activities that the reasonable person really might not expect (such as his shopping habits on one site influencing the adverts he sees on another, completely unrelated site (unrelated in every way apart from having contracts with the same ad provider, of course)). I’m not a lawyer, and I might be missing the point of these reasonable expectations, but it does appear to me that (1) what is reasonable can change over time, and (2) that which we might reasonably expect not to be going on is already going on.

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